Danielle Sassoon and Professional Identity

In the last Legal Ethics Stuff (Feb. 5, 2025) I wrote about the memo from the Attorney General mandating “zealous advocacy” by Justice Department lawyers. I ended with the observation that the law of lawyering is one thing, but there are also informal norms governing the conduct of lawyers, and in some cases they can be even more important than the formal law. I was going to write something about the importance of norms in the abstract, perhaps referring to other episodes in the Trump 2.0 Justice Department, such as the firing of any prosecutor who had worked on Special Counsel Jack Smith’s team (see this excellent article by Bruce Green and Rebecca Roiphe). I was going to make a theoretical point about the centrality of norms to the maintenance of the rule of law.

But then the news cycle intervened with an example of how lawyers can act to reassert and defend essential norms related to the rule of law. I’m completely serious that the lawyers involved should be honored by law schools, the ABA, and any other institutions who care about the rule of law. Hell, they should get a ticker-tape parade down Broadway for this.

As reported in Law360, the New York Times, and elsewhere, the Acting United States Attorney for the Southern District of New York, Danielle Sassoon, resigned rather than carrying out an order from Emil Bove, the Acting Deputy Attorney General, to drop the prosecution against New York City Mayor Eric Adams. The memo from Acting DAG Bove was astonishingly brazen in asserting the purely political nature of the order. You’d think a lawyer would make it sound like there were good legal reasons for terminating the prosecution – the evidence was weak, similarly situated defendants don’t get prosecuted for this kind of conduct, it’s consuming a lot of prosecutorial resources, etc. But nope. The memo comes right out and says that the President wants Adams to help out with his crackdown on illegal immigration:

[T]he pending prosecution has unduly restricted Mayor Adams’ ability to devote full attention and resources to the illegal immigration and violent crime that escalated under the policies of the prior Administration. We are particularly concerned about the impact of the prosecution on Mayor Adams’ ability to support critical, ongoing federal efforts “to protect the American people from the disastrous effects of unlawful mass migration and resettlement,” as described in Executive Order 14165.

As if to underscore the nakedly partisan nature of the directive, the memo states that “[t]he Justice Department has reached this conclusion without assessing the strength of the evidence or the legal theories on which the case is based, which are issues on which we defer to the U.S. Attorney’s Office at this time.”

The only conceivable justification based on neutral principles for the directive to drop the charges is that the prosecution was political motivated. The memo says the prosecution was directed by the Biden Administration in response to Mayor Adams criticizing its immigration policies. This is the “lawfare” or “weaponization” argument, which I have a feeling I’ll be writing about a lot in the coming months. Trump’s frequent refrain has been that any investigation or prosecution of him must be politically motivated because there is no non-political reason he should get in trouble for, say, refusing to return classified documents that could potentially compromise national security and then obstructing efforts by the government to secure the return of those documents. In addition to defending these proceedings on the merits, Trump’s lawyers complained incessantly that they were politically motivated. At his sentencing hearing in the New York prosecution for falsifying business records, Trump said: “This has been a weaponization of government . . . They call it lawfare.”

The tone of grievance hits you over the head in reading the January 20, 2025, Executive Order Ending the Weaponization of the Federal Government:

The American people have witnessed the previous administration engage in a systematic campaign against its perceived political opponents, weaponizing the legal force of numerous Federal law enforcement agencies and the Intelligence Community against those perceived political opponents in the form of investigations, prosecutions, civil enforcement actions, and other related actions. These actions appear oriented more toward inflicting political pain than toward pursuing actual justice or legitimate governmental objectives.

Emil Bove, by the way, had been one of Trump’s defense lawyers in the New York business records case. Is that a conflict of interest? Maybe, but that’s a subject for another time.

Okay, if the prosecution of Eric Adams was nothing more than an effort to impose political pain on someone who had the temerity to criticize the Biden Administration (which the SDNY rebutted, noting that the investigation of Mayor Adams stared more than a year before he criticized Biden’s actions with respect to immigration), then it should be dropped . . . if it was factually and legally unsupported. But the memo from the Acting DAG specifically said he was deferring to the U.S. Attorney’s Office regarding “the strength of the evidence or the legal theories on which the case is based.”

There’s a lot to say about Sassoon’s resignation letter, and even more to say about Acting DAG Bove’s 8-page memo in response, but to sharpen the point about norms of ethical lawyering, let’s look for a second at some features of Danielle Sassoon’s resume:

• B.A. from Harvard, J.D. from Yale.

• Law clerk for J. Harvie Wilkinson on the Fourth Circuit, a highly respected conservative judge, and then for Antonin Scalia on the U.S. Supreme Court.

• Associate at Kirkland & Ellis (a conservative-ish law firm based on the political contributions of firm lawyers, but not overtly political).

• Prosecuted violent and organized crimes at the S.D.N.Y., then moved over to prosecuting financial frauds, including most notably as lead prosecutor of Sam Bankman-Fried.

This is not some wild-eyed progressive prosecutor that Fox News has been howling about for years. Sassoon is a serious, well trained member of the conservative legal establishment. In this respect she is similar to several Justice Department and White House lawyers in the Trump 1.0 administration who refused to go along with the alternative electors scheme cooked up by John Eastman. At the risk of self-promotion (although what’s the point of having a Substack newsletter if you don’t engage in some self-promotion?), I wrote a paper called The Good Lawyers of January 6, in which I considered the actions of lawyers such as Greg Jacob, the counsel to Vice President Pence; White House Counsel Pat Cipollone; White House Senior Advisor Eric Hershmann; Acting Attorney General Jeffrey Rosen; and Deputy Attorney General Richard Donoghue. All of these lawyers, like Sassoon, had impeccable conservative legal credentials, having clerked for conservative judges on the Court of Appeals and the U.S. Supreme Court, served in Republican administrations, practiced at conservative-leaning law firms, and the like. But all of them called bullshit on the plan to have Vice President Pence certify an alternate slate of electors. What gives?

My hypothesis is that professional education and socialization works. Somewhere along the line, beginning with legal education and continuing through early-career jobs, lawyers (the good ones at least) pick up a robust set of informal norms that regulate the application of professional obligations that are stated in formal law, like the rules of professional conduct. The ABA recently amended its accreditation standards to require law schools to “provide substantial opportunities to students for . . . the development of a professional identity.” An interpretive guideline explains:

[P]rofessional identity focuses on what it means to be a lawyer and the special obligations lawyers have to their clients and society. The development of a professional identity should involve an intentional exploration of the values, guiding principles, and well-being practices considered foundational to successful legal practice.

I’m a bit skeptical about the idea of professional identity formation stated this broadly – it seems capacious enough to invite educators to pack all sorts of feel-good ideas into it, without necessarily being all that analytically rigorous about what it means to be a lawyer and the special obligations lawyers have to their clients and society. But that doesn’t mean there is not an interesting normative core at the center of the concept of professional identity. As I read the reporting on the lawyers who pushed back on the “Stop the Steal” nonsense, the most useful explanation was that they were committed to an ideal of lawyer professionalism that was inconsistent with the assertion of raw power that the fake electors scheme would have represented. They cared about facts and evidence – i.e. that there was no evidence of election fraud widespread enough to have affected the results – and, harder to pin down but very important, they knew the difference between the cockamamie legal theory described in Eastman’s two memos and a legitimate, if aggressive, interpretation of the law.

These professional dispositions are closely related to the ideal of the rule of law, and that, I argue in the Good Lawyers paper, is central to the professional identity we should be seeking to promote in our students. People sometimes say that the rule of law can mean lots of different things, but there is at least a focal sense of the rule of law that understands it as committed to “public processes of official review and accountability, where law-based reasons for official action can be demanded.” I get this definition from the outstanding recent book by the legal philosopher Gerald Postema, Law’s Rule. (Everyone should read this book.) As Postema observes, however, the rule of law is not a self-executing ideal. It can erode if those who ought to respect it are instead preoccupied with short-term political interests or the acquisition of power (p. 152). He quotes a Polish political philosopher’s observation that the Law and Justice Party in Poland

turned the law against itself: acting within the literal meaning of the rules or within an apparent legal gap, but disregarding the norms of conduct necessary to accom­plish the original purposes for specific legal provision. In other words, even when a particular PiS action was not a breach of the law, textually speaking, it was corroding the norms that are a necessary support for the law if it is to per­form its functions (p. 155).

Sound familiar? This is the “weaponization” or “lawfare” critique, only this time turned against DAG Bove’s memo attacking Daniele Sassoon for resigning rather than acquiesce in a politically motivated decision by the Justice Department.

To bring this back to legal education, when the conversation turns to professional identity formation, I want to talk about how to create more Danielle Sassoons. I realize our influence may be limited. Undoubtedly she also picked up a lot of professional socialization from the judges she clerked for, her time at Kirkland, and her time in the SDNY. But someone is doing something right, and I’d like to think that law schools can play a positive role in developing a professional identity that enables lawyers to tell the difference between a good faith disagreement about the allocation of prosecutorial resources and an effort to use the law to punish or reward political allies.